Delhi District Court
Haryana In Balraj Singh vs . The State Of Punjab, 1976 Cr.L.J. 1471 ... on 9 January, 2012
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IN THE COURT OF SH. RAMESH KUMAR : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No. 67/10
FIR No. 140/10
P.S. Adarsh Nagar
U/s. 392/394/397/452/411/34 IPC
State
Versus
Kishan @ Karan
S/o. Sh. Bhura Ram
r/o. A40 Jhuggi, Fatak No.4,
Kaushal Puri, Azad Puri,
Delhi.
Date of Institution: 16.11.2010
Date of Decision : 09.01.2012
JUDGMENT : In the present case, charge for the offences punishable U/s.392/394/397/452/411/34 IPC was framed against the accused Kishan @ Karan with the allegations that on 22.05.2010, at about 11.30 pm, in front of House no. A75, Kaushal Puri, Delhi, he along with his coaccused Pardeep (not arrested) robbed Sh. Manohar Kumar, complainant of his mobile phone make Nokia3110 and while robbing Sh. Manohar Kumar, he used knife, a deadly weapon; that while robbing him, 2 accused caused grievous hurt on the person of Sh. Manohar Kumar, complainant; that on the abovesaid date and time, on second floor of House no. A75, Kaushal Puri, Delhi, he along with his coaccused Pardeep (not arrested) also robbed Sh. Devanand Mandal of his mobile phones bearing IMEI numbers 1358953030734030 and 2358953030876005 and also removed the mobile phones of Sidheshwar Kumar and Sushil Mehaldar bearing IMEI numbers 1358952030632194 and 2358952030682199 and Mobile Phone make Sigmatel FXD TV 60; that while robbing Sh. Devanand Mandal, he used knife, a deadly weapon and that in furtherance of their common intention, he along with his coaccused Pradeep (not arrested) while committing robbery, caused hurt on the person of Sh. Devanand Mandal.
2. Accused pleaded not guilty to the charge and claimed trial.
3. Prosecution examined ten witnesses in support of its case. They are PW1 HC Ram Karan, PW2 Ct. Om Prakash, PW3 Sushil Mohaldar, PW4 Devanand, PW5 Ct. Vinay Kumar, PW6 SI Lalit Kumar, PW7 Ramesh, PW8 Ct. Kishan Yadav, PW9 Sidheshwar Kumar and PW10 Manohar.
4. PW3 Sushil Mohaldar, PW4 Devanand, PW9 Sidheshwar Kumar and PW10 Manohar are the material witnesses in this case. The evidence of other witnesses is formal in nature.
5. PW3, Sushil Mohaldar, deposed that he resided at H. No. A75, Bade Bagh, Kaushal Pur, Azad Pur, Delhi. He further deposed that on 22.05.2010, he had put his mobile phone make Sigmatel TV60 having reliance no. 9015227531 on charging inside the room and he was sleeping on the "chajja". He used to share the 3 said room with 4 or 5 persons. One Sidheshwar Kumar also used to reside in the said room, in which his mobile was put on charging and the mobile phone of Sidheshwar Kumar was also put on charging in the same room, in which his mobile phone was being charged. He further deposed that he did not remember the mobile number or the make of mobile phone of Sidheshwar Kumar. He also deposed that he did not know, where Sidheshwar Kumar was, at that time, because he was sleeping. At about 11.30 pm, he awoke after hearing the noise (halla) and he came to know that his mobile phone and six other mobile phones were stolen by some one. Out of which, one was of Sideshwar and one was of Devanand. PW3 deposed that he did not remember the names of the other mobile owners, due to lapse of time. He further deposed that he immediately came down stairs, but by that time, the person who had committed the theft had already left the place. He further deposed that he also came to know that said mobile phones were robbed on the point of knife by two persons. He denied that, at about 11.35 pm, he saw that accused Kishan, was standing on the second floor of said house, having a knife, in his hand along with his associates Pardeep son of Banke Bihari or that at that time, his mobile phone and mobile phone of Sidheshwar Kumar were in the hand of Pardeep and that accused Kishan and Pardeep escaped from the spot after threatening them that if any one chased them, they will give knife blows to him. This witness was crossexamined by Ld. Counsel for the accused. In his cross examination, this witness deposed that he was residing alongwith Shankar Mandal and two more boys, whose name he did not remember.
6. PW4, Devanand, deposed that he resided at A75, Second Floor, Bade 4 Bagh, Kaushal Puri, Delhi and he was a labourer. He further deposed that it was nd 22 day of the month but he did not remember being illiterate, the incident of last year. He further deposed that It was summer season and he was inside his room which was situated on the second floor of the house bearing no. A75, Second Floor, Bade Bagh, Kaushal Puri, Delhi. He further deposed that at about 11.30 pm, he was taking dinner, two persons came there, one of them entered the room and the other one was standing outside the room on the stair case. He further deposed that the boy who had entered the room, snatched his mobile phone from his hand on the point of knife and when he objected to it, he gave a knife blow to him. He further deposed that his mobile phone was of make "Forme" and its number was 9910059912 but its IMEI number, he did not remember. He further deposed that he could not identify the person, who had snatched his mobile phone as he was new in that area and had come to Delhi only one month prior to the incident and he had seen that person for the first time at the time of incident. He further deposed that said person is not present in the court. He further deposed that two other mobile phones belonging to Sidheshwar Kumar and Sushil, which were being charged in the room, were also taken by that man. He further deposed that, meanwhile, one Manohar Kumar also came on the second floor and he was having cut injury over his four fingers of one hand.
7. PW9, Sibesar Kumar, deposed that he resided at house of Sajjan Shah, Bada Bagh, Kaushal Puri, Delhi. He further deposed that on 22.05.2010, he was residing at A75, IInd floor, Kaushal Puri. He further deposed that at that time he was 5 having a mobile phone made GFive, on which there was a Vodaphone sim, the number of which he did not remember, due to lapse of time. He further deposed that he put his said mobile phone on charging and went downstairs. He further deposed that the mobile phone of Sushil Mahaldar, the number of which he did not remember was also put on charging in the same room. He further deposed that, Sushil Mahaldar, was sleeping in the balcony of second floor and he went to the ground floor in the room of Dev Anand. He further deposed that at about 11.15 PM, when he went on second floor and saw that two persons were standing on the second floor, one of them was having a knife in his hand and the other was having his mobile phone and the mobile phone of Sushil Mahaldar, in his hand. He further deposed that thereafter, they both threatened them that if someone chases them, they will kill him and ran away alongwith thier mobile phones. This witness denied that accused, Kishan, present in the Court, who was his neighbourer alongwith Pradeep was standing on the second floor, and that accused, Kishan was having a knife in his hand and that friend of Kishan, namely Pradeep, was having his mobile phone and the mobile phone of Sushil Mahaldar in his hand and that they both ran away after threatening them. This witness was crossexamined by Ld. Counsel for the accused. In his cross examination, this witness deposed that his statement was not recorded at the spot, but it was recorded in the PS. He further deposed that his statement was not read over to him by the police.
8. PW10, Manohar (complainant), deposed that he resided at House No. A75, Bada Bagh, Kaushal Puri, Delhi. He further deposed that he did not remember the 6 exact date being illiterate, but the incident was of summer season of year 2010. He further deposed that on that night, at about 11.30 pm, he was listening songs on his mobile phone while sitting on a stone outside his house and four persons came there. They snatched his mobile phone from his hand. He further deposed that his mobile phone was Nokia 3110 and its number was 9971927057. When he resisted, gave a knife blow on his left palm. He further deposed that all the said four persons were in muffled faces, as such he was unable to identify them. He further deposed that thereafter, they ran away from there and he entered his room. He further deposed that he did not know anything else about this case. This witness denied that, on 22.05.2010, accused, Kishan, present in the court robbed his mobile phone from his hand and that when he resisted, he took out a knife from the right dub of his pants and gave a knife blow on his left hand. This witness also denied that, after that accused, Kishan along with his associate, Pradeep went to the second floor of his aforesaid house and accused, Kishan, on the point of knife robbed the mobile phone of Deva Nand Mandal make Forne E71V bearing IMEI no. 1358953030734030 and IMEI no. 2358953030876005 from his hand and when Devanand Mandal resisted, accused, Kishan gave a knife blow to him also and thereafter, accused, Kishan and said Pradeep removed mobile phone ForneF220 bearing IMEI No.1358952030632194 and IMEI No.2358952030682199 and mobile phone make Sigmatel FXDTV60 belonging to Sidheshwar Kumar and Sushil Maheldar, respectively, which were there in the room on charging. This witness denied that when he and Devanand Mandal raised alarm, accused, Kishan and said Pradeep threatened them, "Kisi ne hamara 7 peecha kiya, to chaku se phhar denge" and ran away. This witness denied that accused, Kishan @ Karan, present in the court, is the same person, who had robbed his mobile phone on 22.05.2010 at 11.30 pm and that he is the same person, who had given a knife blow to him. He deposed that he could not identify said mobile phone, because he had taken the same from one Ramesh just two minutes prior to the incident. This witness was crossexamined by Ld. Counsel for the accused. In his cross examination, this witness deposed that his statement was recorded by the police, which is Ex. PW10/A, but the same was not read over to him prior to obtaining his signature on the same.
9. In view of the evidence of complainant and other material witnesses on record, the statement of the accused under section 313 Cr.P.C. has been dispensed with.
10. It has been contended by the Ld. Counsel for the accused that the accused has been falsely implicated in the present case and there is not sufficient evidence on record which could bring home the alleged guilt of the accused. It has further been argued that material witnesses have not deposed anything against the accused. It has further been contended that the prosecution has failed to prove its case against the accused. Ld. Counsel for the accused has prayed that the accused be acquitted.
11. On the other hand, it has been contended by Ld. Addl. PP for the State that the prosecution has proved its case against the accused beyond reasonable doubt. It has been argued that there is sufficient material on record against the accused to convict him for the offences alleged against him. Ld. Addl. PP for the State has 8 argued that accused be punished for the offences committed by him.
12. I have heard arguments on behalf of both the parties and have gone through the record file carefully.
13. It is well settled preposition of criminal law that prosecution has to establish its case against the accused beyond reasonable doubt. Reference in this connection can be made to the decision of Hon'ble High Court of Punjab and Haryana in Balraj Singh Vs. The State of Punjab, 1976 Cr.L.J. 1471 (DB) (Punjab) in which it was observed as follows: The guilt of accused is to be established by the prosecution beyond the possibility of any reasonable doubt on the basis of legal evidence and material on record. Even if, there may be an element of truth in the prosecution story against the accused and considered as a whole, the prosecution may be true, but between 'may be true' and 'must be true', there is invariably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.
14. It is well settled preposition of criminal law that prosecution has to establish its case against the accused beyond reasonable doubt. Reference in this 9 connection can be made to the decision of Supreme Court in, Tika Vs. State of UP, AIR 1974 SC 155, wherein it has been held that One of the cardinal principles which has always to be kept in view, in our system of administration of justice for criminal cases, is that an accused is presumed to be innocent, unless, that presumption is rebutted by the prosecution by production of evidence which may show him to be guilty of the offence with which he is charged.
15. In Bhikari Vs. State of U.P., AIR 1966 SC 1, the Supreme Court has held that Undoubtedly, it is for the prosecution to prove beyond reasonable doubt that the accused has committed offence with the requisite mens rea.
Once it is done, the accused can rebut this presumption either by leading evidence or by relying on the prosecution evidence itself. If upon evidence adduced in the case, either by prosecution or by defence, a reasonable doubt is created in the mind of the court, regarding one or more ingredients of the offence including mens rea, then he would be entitled to be acquitted.
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16. In the present case, prosecution examined PW3 Sushil Mohaldar, PW4 Devanand, PW9 Sibesar Kumar and PW10 Manohar, as material witnesses but none of them deposed against the accused, so as to incriminate him in the present case. There is not sufficient incriminating evidence against the accused, Kishan @ Karan, in the present case. All the material witnesses could not identify the accused, Kishan @ Karan. PW10, Manohar, who is the complainant also did not support the prosecution case and deposed that when he resisted, the accused gave a knife blow on his left palm. He also deposed that all the four persons who came at the spot were in muffled faces, as such he could not identify them. He also deposed that thereafter, they ran away from there and he entered his room. He also deposed that he did not know anything else about this case. He denied that on 22.05.2010, accused, Kishan, present in the court robbed his mobile phone from his hand and that when he resisted, he took out a knife from the right dub of his pant and gave a knife blow on his left hand. This witness also denied that accused, Kishan along with his associate, Pradeep went to the second floor of his aforesaid house and accused, Kishan, on the point of knife robbed the mobile phone of Deva Nand Mandal make Forne E71V bearing IMEI no. 1358953030734030 and IMEI no. 2358953030876005 from his hand and when Devanand Mandal resisted, accused, Kishan gave a knife blow to him also and thereafter, accused, Kishan and said Pradeep removed mobile phone Forne F220 bearing IMEI No. 1358952030632194 and IMEI No. 2358952030682199 and mobile phone make Sigmatel FXDTV60 belonging to Sidheshwar Kumar and Sushil Maheldar, respectively, which were there in the room on charging. He also denied that 11 when he and Devanand Mandal, raised alarm, the accused, Kishan and Pradeep threatened them, "Kisi ne hamara peecha kiya, to chaku se phhar denge" and ran away. He denied that accused, Kishan @ Karan, present in the court, is the same person, who had robbed his mobile phone on 22.05.2010 at 11.30 pm and that he is the same person, who had given a knife blow to him. He even could not identify his mobile phone.
17. In view of the above discussions, I am of the considered view that the prosecution has not been able to bring home the guilt of the accused. No incriminating evidence has come on the record file to connect the accused, Rakesh @ Karan with the offences punishable under sections 392/394/397/452/411/34 IPC. Accordingly, the accused, Kishan @ Karan deserves acquittal. Hence, he is acquitted for the offences punishable under sections 392/394/397/452/411/34 IPC.
18. Personal bond and surety bond of accused, Kishan @ Karan are cancelled. His surety is discharged.
File be consigned to the record room.
ANNOUNCED IN THE OPEN COURT (RAMESH KUMAR)
TODAY i.e..09.01.2012 ADDL. SESSIONS JUDGE,
ROHINI COURTS, DELHI